Wednesday, June 13, 2007

Himan Cross-Examination

Nifong attorney Dudley Witt is currently cross-examining Ben Himan, with the apparent intent of showing that Himan's investigation before Mike Nifong took over the case established that a rape must have occurred.

At this point, the two are simply going through Himan's and Gottlieb's notes.

It's interesting to see what items from the investigation excluded--namely, Crystal Mangum's inability to identify any of her "attackers" on March 16, nor the lack of bruises on her at the March 16 interview, nor whether the captains offered to take lie detector tests and voluntarily give over their email passwords.

Witt also didn't ask Himan whether, in their interview, Dan Flannery repeatedly urged police to contact Kim Roberts, who would confirm that no rape occurred.

Witt is effectively reading Himan's notes into the record, with Himan simply saying "yes"; the intent is to suggest that enough elements in the statements of Dave Evans and Dan Flannery confirmed Mangum's story as to believe its credibility.

In the only new item to appear in more than a half-hour of testimony, Witt referenced a racially insensitive e-mail from lacrosse captain Matt Zash, which Zash admitted sending.

In an apparent contradiction of a statement made by David Freedman in the opening (that Dave Evans' and Dan Flannery's statements confirmed reports of "witnesses" from the neighborhood that racial slurs were used), Witt has just admitted that the police never had such a report until March 20 (from Jason Bissey)--or four days after the captains voluntarily spoke with police.

Asking about the interview with Roberts: Witt isn't mentioning any of the myriad contradictions between the Roberts and Mangum statements.

The repeated mantra: broomstick, racial slurs.

Witt is now moving through the area where Himan is most vulnerable--the March 23 NTO, where the application is essentially fraudulent (a claim that evidence existed that the players used first-name aliases). Witt: it's true, is it not, that this application was prepared by the Police and not the DA's office? Himan: Yes.

While Witt hasn't mentioned either the March 16 or March 21 photo arrays, he's now on to the McFadyen e-mail.

The cross-exam has been plodding, since Witt is only asking Himan to confirm his written notes.

Witt now seems to be challenging the AG's conclusions that Mangum was impaired the night of the party.

Discuss meeting with Dean Sue on April 13--says she had talked with Dan Flannery about events of the party. Wasiolek claims that Flannery told her it was a "bad scene."

Himan also says that he spoke with Alleva--says that he had heard that parents had gotten involved and didn't want the players to meet with the police.

It's unclear how anything that happened after March 27 will help Nifong in beating the charge of pre-primary improper statements.

Admits that he first found out that Reade Seligmann was at the party from photos shown on MSNBC--after the indictments.

Himan admits that in his March 27 meeting with Nifong. he said that he considered Mangum believable.

Witt refers to the Nifong "we're fucked" comment as "the word that Mr. Nifong said."

Witt: "When you went to the grand jury, you presented the case as you wanted." Witt: did Nifong tell you to withhold or sugarcoat information to grand jury? Himan: No.

Himan says that he had no conversations with Nifong in which Nifong said to withhold evidence.

Witt has concluded his cross-exam: very little damage done to Himan. The Bar didn't even redirect--little need seemed apparent.

ADA David Saacks said that he had never before recalled that many people being on an NTO from the DA's office.

Lane Williamson: "was it apparent to you that Mr. Nifong had any ass't DA helping him with the prosecution?" Tracey Cline said that she had read over some of the case file.

At any time, did you investigate the background of Mangum? Himan: Yes--for criminal record.

Gave Nifong material on Mangum's criminal record as of April 11.

Himan also says that police were aware that Mangum had "some mental issues," "on a lot of pain medication," "extensive medical issues." Knew that she was bipolar. Knew that she was on Flexeril. Later told police that she was on psychological medicaion.

Nifong knew about Mangum's medical history, including her psychiatric history, as soon as Himan did--this information came prior to the indictments of Seligmann and Finnerty.

Himan admits that he had some concerns about how this affected Mangum's credibility--but Nifong never expressed any.

Was asked to come to the Elmostafa trial by Linwood Wilson.

Williamson: Who decided to go to the grand jury to seek an indictment? Himan: Mr. Nifong.

General summary: Nifong's lawyers didn't dispute anything Himan said yesterday. The strategy seemed to be to just throw out as much general dirty laundry about the team as possible.

DNC panelists makes clear from Himan that Nifong knew about all Mangum's inconsistent statements before indictments.

UNC medical records to which Nifong had access: as of March 15, says that she was drunk and felt no pain. Inconsistent with what she told Himan the next day.

Also clear that Nifong knew of "long psychological history" from UNC medical files.

What is the point of trying to prove that Nifong thought a rape occurred based on the early evidence? Are they going to say that since Nifong thought a rape occurred it was OK to deny the civil rights of the lacrosse players?

The NYT should read the Pretrial Order stipulating the facts that are not in dispute, signed by all parties. Just these facts are wholey incompatable with the metanarrative and go so much further than the Duff they publish.

They are really trying to do their best to put the players on trial--this is terrible! Haven't seen if Nifong is smirking about it, but he probably is enjoying this! Hope he knows that there will be very few of these moments in this proceeding!

Witt hasn't really broken any new ground. Of course, cross cannot go beyond testimony in direct, so he's got to try to twist Himan's words to make it appear that everybody believed the whore. I don't think he's being very successful; hope redirect can get some of the fog clearted.

What I really enjoy about this hearing is knowing that Nifong is burning up his money paying for his legal representation. It is not going to be anywhere near the approximately $3,000,000 the players have expended on legal costs, but this is just the beginning of the legal bills for Nifong.from a non-lawyer/retired professor

Interesting. I still think Freedman's defense appears more calculated for a jury than for a legal panel.

The laywers arent' going to be swayed by racial epithets of mentions of broomsticks as sex toys, most of them made their money defending real criminals and deflecting real evidence of guilt.

If he was pleading his case before a jury, he might be getting somewhere, if the issue at hand was 'is it reasonable that for 2 or 3 days Mike Nifong could have believed a rape occured] but that isn't the question.

The violations he is on trial for would STILL be violations even if the 3 boys had been guilty, so establishing that there for about 60 seconds was a reason to think the whore escort was telling the truth is pointless.

Maybe they are doing a dry run for the civil case becasue they know he's a goner in this hearing?

It looks like Witt is trying to imply that some kind of drug was given to Mangum. Seems to be a kind of innuendo argument without direct evidence. Maybe it would create doubt for a jury. I would hope that the State bar would mention that she was on antipsychotics.

I'm a little confused about the toxicology hair test--when this information first came out, it was suggested that they were testing for PCP. Now we hear that "there was no evidence" of other drugs in the sample, but we didn't hear what was tested for, whether hair tests can reveal alcohol consumption (as opposed to drugs), whether negative results of such tests are conclusive, etc.

It was a drug test. There was a post on LS regarding the history of the tests (state had to shop around labs that would do this test as it apparently isn't common). I don't have a pointer to the LS pointers though.

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Witt asking about Kim Roberts (I think he said Pittman though) about outstanding probation violations. Himan though that she was being evasive when she said that it was a crock. They thought that she said that to get away from the police because of the outstanding violation.

So they didn't believe her for this reason. I guess the police could have come to that conclusion but it would have been more professional if they examined and considered what she said.

It's a different standard, he could be disbarred, but any civil suit would still have to pierce his absolute immunity from civil liabilty for what he did as DA...of course being disbarred for ethical violations would be a huge help but it doesn't necessarily mean that one follows the other.

This is an extraordinary situation, I don't know how many DAs across the country have been in this situation or even how many have lost civil suits or been charged for criminal acts, but my guess it, its a true handful, a tiny, tiny number.

How can her intoxicated be challenged, she admitted it herself, though her level of intoxication varied greatly...she has always been specific about drinking and mixing it with various legal drugs, though I still think she was on oxy or heroin.

Help me with this please somebody- Why is Team Nifong allowed to attempt the trial of the fake rape case here and bring up all the un consequential stuff, like the email and the alleged slurs? This looks like little more than a smear attempt against the players.

Doing a good job of impeaching Himan's testimony from yesterday. Reminding the panel that it was Himan who would have had to lie to a Grand jury, and Himan who misrepresented to the judge to get the NTO.

I was never sure exactly how much of her mental and sexual background they knew at the time of the indictments, its worse than I thought, they knew ALL of it even before they indicted anyone. Disgusting.

Trying to get a DA disbarred over inappropriate comments in the media is laughable to me. The State Bar would not have even brought those charges if the evidence of guilt was there. If there was some actual evidence of guilt and the accuser had some credibility, Nifong would be a hero for standing up and speaking out on behalf of a black victim of rich white kids, even if it was a he said she said case with no physical evidence. Does anyone think the State Bar would prosecute Nifong for misappropriate comments under those circumstances with the racial makeup of Durham county? Please. The State Bar wont even prosecute someone for witholding evidence in the Gell case that could have caused an innocent man to be executed.

The withholding of evidence is another story and he should be disbarred. That should be the focus. This other stuff is window dressing to make sure they get him disbarred.

Lastly, I cannot believe Nifong would not just give up his bar license to avoid this embarrassing hearing. He is going to give testimony that not only makes him look worse then he already does, but also give fuel for the civil and criminal suits. He must have someone or something who is going to testify that is going to make Duke, the City of Durham, or some entity look worse then they already do.

The more he fights this, the more he is going to pay both civilly and criminally. I must be missing something but part of me thinks he does not plan on defending civil suits and wants to use this forum to say everything he wants to say before he leaves town.

If Im him, unless I have something really important to say at this hearing, I turn in my bar license, disappear and make myself as Judgment proof as possible. He cant afford to settle all the civil cases so why defend or try to settle any of them. This could be the only forum he is going to speak in so he is going to fire all his bullets. He will use his silence as a trump card to avoid criminal responsibility as he will take the 5th all day long if subpoenaed unless all state and federal agencies agree not to pursue criminal charges.

Sometimes it is better to run then stand and fight and my guess is he will be running after this hearing is over.

Himan swears that Nifong never reviewed Himan's "anticipated" Grand Jury testimony with him, in advance; Nifong simply told Himan to go for the indictments, with NO discussion as to what Himan would say.

I think its his personality, there is no 'master plan' here, like there was no 'master plan' in railroading the boys...he saw an opportunity, took it, when it was 100% clear he had no case his arrogance and unwillingness to be 'shown up' by Chesire/Smith/Osborne is what prompted him to lie and hide evidence.

Its the same reason he didn't resign months ago or try any back door machinations to stop the formal hearing. It isn't in his nature to admit his mistakes. He isn't a vision guy, he never thought beyond the election on how he would get out of taking the embarassing case to trial, he's not thinking about a civil trial now, all he's doing is putting his head in the sand and repeating to himself that he did nothing wrong.

This whole charade is to serve Nifong's ego, if he opens the door to a bigger/better lawsuit against Durham, the DPD, or himself, he doesn't care, not thinking about that, he will think about that tomorrow.

I know Nifong hasnt been smart in this deal, but as a lawyer myself, I cant believe that he isnt thinking about anything other then today. I think he had a master plan when he tried to railroad the case and it was all about keeping his DA position and working until his pension vested.

Now he does not have a plan for the future? Even the worst lawyers still think ahead, especially in serious matters. If he does not have a plan, which may change as the circumstances dictate, then he has less brains then I thought and has no friends or gets no advice.

Im not a guy with a lot of friends, but I sure would hate not to have anyone be available to counsel me should I mess up or have something bad happen to me. Whether he thinks this is all a witch hunt, surely he knows it is bad and that should make him have some kind of plan whether its one he thinks of or one where he gets advice from others.

He isnt the only DA that has ever withheld evidence and Im sure he himself has done it before and gotten away with it. DAs may be dumb relative to the defense lawyers in this case, but they arent dumb relative to the average citizen/defendant. He has to have something up his sleeve or some kind of plan to save himself No?

I can see what you are saying, from a logical point of view, but his handling of the case isn't logical.

Logically, rather than flat out lie in court about the DNA evidence [did he REALLY think a million defense team would never get the data,if so, he's irrational, if not, he's stupid?], he would have given himself some wiggle room in the words he used.

Why didn't he just give up the DNA from the beginning to the defense and file to exclude it under the rape shield law? He might have won that motion given the Durham local boys mentality, but even if he didn't it would have put the onus back on the defense as the bad guys trying to drag the poor/black/college/mommy through the mudd by outing her consensual sex life. I doubt it would have worked becuase she lied about it and for various other reasons, but it would have put him in a MUCH better position w/the media/public and legally than lying in court and hiding the evidence.

He strikes me as the kind of guy who doesn't take good advice. My belief is someone behind the scenes beat him over the head to get him to recuse himself, they threatened him with something serious or he wouldn't have done it. He knew once the AG got the case file it was over, that the charges would be dropped.

I believe his plan was to stall on the DNA until after the election then find a pretense to drop the case, he may be insane enough to think he could have taken the case to trial and not been humiliated, not sure anymore, but based on what we now know about the case and the complaining witness I doubt even the most racist OJ jury would have done anything but acquit the boys.

I thought that for a long time, but I'm not so sure anymore, I have a hard time thinking you could have found 12 people who would support a crazy, drug addled, super promiscuious lying stripper/escort w/a criminal record.

Yes, there are some parallels, but OJ Simpson was an American hero, and whether or not it was relevant Mark Furhman was caught lying on the stand and painted as a racist.

None of the 3 boys who were accused were ever accused of being the ones who said anything racist to the strippers.

Yes, it is possible that a Durham jury might have at least hung, you only need one Victoria Peterson or Wendy Murphy, but given all information about the alibis for 2 out of 3 of them and the accuser being the absolute worst stereotype of the lying, criminal black person, it was a HUGE, HUGE long shot for him.

If he had taken the case to trial and put Mangum on the stand I guarantee she would have lied right in front of the world! There is no way that nut job could have stopped herself. Nifong had to know this.

But, maybe he is crazy and should be putting forth a mental health defense here.

All I know is that someone has to be counseling Nifong. Someone who has not or cannot speak out until everything is over.

Ive dealt with some arrogant folks in my years of lawyering and am still amazed at lawyers, despite me giving them opportunity to fix a mistake, will go into court and argue a case where it is clear they are going to get sanctioned, still do it. This arrogance typically goes away with age and experience.

Nifong has lots of expeerience in the system, even if it is in traffic court. I dont care how much hatred he has for Duke kids and where they come from, by the time you are his age, you have to let it go. Your lot in life is what it is. To think he would do what he did and then allow it to continue despite advice and counsel from someone, indicates to me this guy is either so mentally ill or that there is some kind of plan to deal with everything that is happening. It may not be a good plan, but he cant be just sitting there focused on today or what the Bar is going to do. There is so much more to happen that losing his bar license will seem like a blip on the radar when he might later be fighting for his financial future and personal freedom. I cant believe he is not thinking about that and what he needs to do to minimize damages or stay out of prison.

He thinks that absolute immunity is going to save him from civil liabiilty because the DPD at least officially maintains that he was NOT running the investigation.

He thinks, given the old boys network in NC, that no one is going to charge him with a crime, he may be right here. However, depending on what the facts are that come out in this hearing, the outcome and any subsequent discovery from civil suits, the Feds may yet charge him.

He's been running a high stakes bluff from the beginning. He knew she was a crazy whore from the beginning. What I think he 'thought' he had was consensual sex w/a crazy whore who then went crazier and claimed rape. He believed he would get somebody's DNA on her because he believed someone at the party had sexual contact w/her. This was his fatal mistake. Everything subsequent to that was raising the stakes and keeping the bluff going for as long as he could.

He is still running his high stakes gamble, oblivious to the fact that he's lost every round so far and will likely lose the subsequent rounds.

I see what you are saying, but the minute there was some corroboration about racial slurs or statements like "thanks for making my white cotton shirt" coming from a bunch of Duke kids, no matter what it was in response to, a hung jury would be the minimal result.

Nifong would have continued to use State resources to retry the case as many times as he got a hung jury until he got a conviction. the champion of the poor black disenfranchised he is! It would soon be governor Nifong if he got a conviction.

Juries dont decide cases on the facts, especially in a racially charged environment. Those boys and their families would have wished their legal bills would only have been 3million by the time the case was over. That is why what Nifong and the accuser did is so serious. I didnt grow up in the South in the civil rights era or sooner, but the roles are being reversed. Whites are becoming the minority and this nonsense that these guys could actually be convicted in this kind of case wont be so far fetched in a couple decades.

I still dont get how the accuser is facing no penalties for what she did and because she had another kid since this happened, her welfare check from the State INCREASES. WTF!!

Why anyone thought that any of those boys had sexual contact with that whore is amazing.

I dont care how drunk you are at a party of strippers like those girls, no Duke lacrosse player who can score hot sorority babes or daughters of CEOs with a wink, is going stick his penis in that and face the ridicule of his teammates. Yeah I know rape is about power, but embarrassment outweights any kind of desire for power in most people.

While what one of these Duke guys might do in a private on on one encounter with such a slut is open for debate, I dont see how anyone ever thought this happened. To have a chance to seem logical, the guys charged had to be the only ones at the party.

This logic is how I knew from day one it was another Tawana Brawley deal.

Nifong probably couldnt get laid in college and thinks everyone suffered from that problem so a rape must have occurred.

I knew this was a hoax as soon as the defense team said THEY would go public with the DNA results when they came in.

NO DEFENSE LAWYER in his right or wrong mind who isn't 200% sure of the outcome--no matches--would ever make such a public statement BEFORE the test results were in. Once they made this promise prior to the test results, I knew the case was a lie.

In most cases that is correct, but no Duke Lacrosse player, no matter how drunk, would stick it in CGM with all his buddies around. I would have believed it if it was some hot girl from school, white or black, who turned him down or was so attractive that he had to have it, but this skank? Not in front of your buddies. I went to college. No one was ever that drunk and I could write a book on all the stupid things drunk guys did.

anonymous at 12:06 PM: Absolutely correct. That's how I knew within 24 hours of hearing of this case that she was lying: There are some things that no amount of alcohol can facilitate. One of them is having public sex with, as you put it, "a skank".

That's true if he was alone. But as we all know, not only were none of the LAX players alone with Crystal, they were in the same house with 40 or so of their CLOSEST friends. As 11:52 and 12:06 have pointed out, that changes everything.

There is no way that anyone on the Duke lacrosse team is going to suffer the ridicule from his buddies that would ensue had he done the deed consensually with Crystal in their presence. Any attempt to try to defend such a thing with the "I was drunk so I didn't know what I was doing" defense would have been met with "nobody could get that drunk and not pass out."

And there is no way that 40 or so Duke lacrosse players are going to put themselves in legal jeopardy if one of them actually raped someone in their presence.

Nifong knew this. So did Himan and Gottlieb. They knew Crystal was lying from the get-go and proceeded anyway. As punishment each of them should have to spend a week locked in a room with Crystal and 10 cases of beer. I'll bet they wouldn't get drunk enough.

At the end of the day, when this sits and simmers and refines itself into the septic stink that it is, someone is going to have to rationalize not only Nifong's behavior but the behavior of numerous others. There are still those looking into the television camera and saying that something must have happened in the house that night. Yes, something did happen. A group of young boys barely out of their teenage years had to deal with a group of thugs. These were mature adults who for their own purposes whould have hung them out to dry, and an entire town has to suffer. The very beginning of this thing needs to be looked at closely and the way Mangum is being treated and her role in this affair and in the affairs of the community needs to be addressed.

As someone who is mother, wife, sister etc. to males, I find it a bit sad that so many could go with the feminist stereotype of the male willing to have sex with anything that breathes. Even Franklin’s “all cats are grey at night” backhandedly acknowledged that visual appeal is important even to a motivated male. I would be seething at the slander of my son (or any male I know) being put in the same group as one of Crystal’s “clients”. There is no shortage of resentment in this case - the resentment of people who have to content themselves with scrapple while others enjoy filet mignon. And it must be especially difficult for them to understand that those who are used to filet mignon would go hungry rather than touch scrapple. Nifong undoubtedly enjoyed every minute he spent painting the Duke boys as scum. And now it appears he is using a stereotype as his defense - the lust-crazed, drunken, closet racist, rich white jock. He was reasonable in assuming they were guilty based on this stereotype. What the bar does here will tell us if they agree with the application of a stereotype as evidence and reason to proceed. Good to know, because it would certainly expedite matters to be able to glance at the droopy-pantsed, bling-wearing black teen with the attitude and assume he deserves jail time. Stereotypes make things easy, if not just.

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